Experts disagree over lawsuit’s chances in court

The lawsuit filed Wednesday by the 10 immigrants marks a major turning point in a two-year-old saga that shook the city and the nation. But how it will all turn out is still anyone’s guess.

Six experts interviewed expressed divided opinions over the federal lawsuit filed Wednesday, which claims that U.S. Immigration and Customs Enforcement agents of various ranks violated the Fourth, Fifth and 10th amendments by arresting 29 people in New Haven on June 6, 2007.

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“I think they have a good [case] from the perspective of something you want to feel good about fighting for justice,” Douglas Penn, chair of the Connecticut chapter of the American Immigration Lawyers Association, said. “I think, in all honesty, it’s probably going to be a very difficult case.”

On violations of the Fourth Amendment, the plaintiffs claim that immigration agents entered private residences without consent or search warrants.

Deborah Notkin, a attorney at New York-based Barst Mukamal & Kleiner and a member of the American Immigration Lawyers Assocation, agreed that the raids violated the Constitution.

“I am outraged with this kind of activity,” she said. “Search warrants are required. You can’t just break into someone’s home.”

ICE agents never have claimed that they had search warrants. What they did have was a list of 30 immigrants wanted for missing court proceedings. Agents checked this list of targets against a federal database to determine which houses to search. Five of the 29 immigrants they arrested by the end of June 6, 2007, were on that original list of targets.

According to a former FBI agent, Brad Garrett, the list is all ICE agents require to have legal basis in arrests.

Garrett said agents can pursue fugitive immigrants anywhere, just as police would pursue any other criminal fugitive; they do not need search warrants to enter a location where they expect the fugitive to be.

“With immigration enforcement, there is a little more latitude,” he said.

Garrett added that all illegal immigrants are liable for deportation whenever they are discovered, even if incidentally.

But documents obtained by Yeshiva University’s Benjamin N. Cardozo School of Law through a Freedom of Information request may help the Yale lawyers argue another violation of the Fourth Amendment. The plaintiffs claim that higher “quotas” for arrests mandated by ICE officials encouraged the New Haven raids.

Internal ICE memos show that in 2006, John Torres and Julie Myers, two of the agency’s highest-ranking officials at the time — and two of the defendants in the new lawsuit — increased the agency’s goal for immigration arrests to 1,000 per regional enforcement team, up from 125. Torres and Myers also permitted arrests of immigrants without criminal records or fugitive status to count toward ICE’s goal, according to the documents.

On violations of the Fifth Amendment, which ensures equal protection under the law and due process, the plaintiffs assert that federal agents arrested plaintiffs based on race before adequately determining their immigration status.

Finally, on the alleged violation of the 10th Amendment, the plaintiffs claim that ICE officials violated states’ rights by interfering in New Haven affairs.

Citing e-mails between federal officials as evidence, the lawsuit claims that ICE specifically targeted New Haven to undermine the city’s immigration policy. By the time ICE agents arrived in Fair Haven, they did not notify the New Haven Police Department of the operation. One of the defendants, ICE official Richard McCaffrey, admitted during an ICE internal investigation that the failure to notify local authorities had been an error on the part of the ICE agents, according to the lawsuit.

In response to the 10th Amendment argument in the lawsuit, City Hall spokeswoman Jessica Mayorga said ICE “definitely violated their protocol in not talking to us,” adding that the failure was a public safety issue for the community.

Still, several lawyers said the application of the 10th Amendment struck them as unusual. They added that they could not predict how that aspect of the case would turn out.

Upon taking office, U.S. Secretary of Homeland Security Janet Napolitano ordered a complete review of immigration enforcement. She said in a speech in August that although the administration would continue to aggressively target illegal immigration, ICE officials would focus on holding employers responsible for hiring illegal workers.